A K MURMU Vs. PRASENJIT CHOWDHURY

JUDGEMENT

(1.) This is an application under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the opposite parties Nos. 1 and 2 namely Prosenjit Chowdhury and Santanu Deb Roy by the learned Chief Judge, City Sessions Court, Calcutta by order No. 3 dated 26th Nov. 1998 passed in the Criminal Misc. Case No. 527 of 1998. The facts relevant for the purpose of disposal of this application are as follows :The petitioner is an Assistant Director, Enforcement Directorate, Foreign Exchange Regulation Act (for short, 'FERA'), Regional Office, Calcutta. To work out an information regarding clandestine deals in regard to transfer of huge amount of foreign exchange under the guise of Import of Jamdani sarees of the low, inferior and non marketable quality, the officers of the petitioner searched on 24th Sept. 1998 the residence -cum-official premises of one Abhijit Chowdhury, the elder brother of the opposite party No. 1, under Section 37 of the Foreign Exchange Regulation Act, 1973 and seized seven highly incriminating documents. From the said documents, the petitioner came to know that both the opposite parties Nos. 1 and 2 were also involved in the Hawala transactions as the owner of M/s. Magnolia International in transferring huge amount of foreign exchange namely the US Dollars equivalent to multi-crores of Indian rupees outside India and to one Md. Monir Hossain of Bangladesh under the guise of bogus import of the machine woven (and not hand woven) Jamdani sarees priced per piece within the range of Rs. 100 to Rs. 250 equivalent to U.S. Dollars 6 to 7 claiming the said sarees as hand woven Jamdani Sarees which are priced per piece US $ 80 to US $ 100 being equivalent to the Indian rupees Rs. 3500/- to Rs. 4000/-. Such illegal transactions were carried on by the opposite parties during the period from June, 1997 till the later half of Sept. 1998 involving violation of the Foreign Exchange Regulation Actto the tune of Rupees fifteen crores 95 lacs 98 thousand. From the statements of Md. Monir Hossain recorded under Section 40 of the Foreign Exchange Regulation Act on 24-9-1998, the petitioner also came to know that the opposite parties were engaged in the above illegal hawala transactions with similar modus operandi along with ten other Bangladeshi exporters of Jamdani Sarees. The petitioner issued two summons on 28-9- 1998 and 14-10-1998 in exercise of the power conferred under Section 40 of the FERA upon the opposite parties for their appearance. But they did not appear and made two separate applications under Section 438 of the Cr.P.C. before the Chief Judge, City Sessions Court, Calcutta for anticipatory bail which were registered as Criminal Misc. Cases Nos. 488 and 489 of 1998 respectively. The petitioner filed two written objections against those applications on 9th Nov. 1998 that the opposite parties being substantially involved in the commission of economic offences of serious nature were not entitled to anticipatory bail and that the grant of bail at the preliminary stage of investigation would reduce the investigation into a mere ritual. The petitioner also cited decisions of the Supreme Court in support of his objections. The learned Chief Judge disposed of the said Criminal Misc. Cases by his order dated 9-11-1998 by granting anticipatory bail on conditions that they should see the I.O. every Monday, Wednesday and Friday between 2 and 5 p.m. at the office of FERA and should not leave Calcutta without and shall hand over their passports, if any, to the I.O. This order of anticipatory bail was directed to remain in force for a period of two weeks. The order granting anticipatory bail suggests as if the learned Judge perused the Case Diary but the petitioner alleged that he was not given any opportunity to produce any investigation record maintained in this behalf and as such, there was no question of perusal and/or consideration of such records by the learned Judge. Armed with the anticipatory bail, the opposite parties appeared before the I.O. but either avoided or straightway refused to answer the relevant questions that were put to them as a result of which the investigation was hampered. Before the expiry of the duration of the anticipatory bail, on 19-11-1998, the opposite parties filed applications before the learned Chief Metropolitan Magistrate, Calcutta for regular bail. The petitioner filed two written objections on 20th Nov. 1998 against the said applications for bail raising, amongst others, the contentions that in the conspicuous absence of any direction in the anticipatory bail order there could not be any voluntary surrender or appearance before the ld. Chief Metropolitan Magistrate by the opposite parties for obtaining regular bail. The opposite parties were neither arrested in exercise of the power conferred under Section 35 of the FERA nor produced before the Court of Chief Metropolitan Magistrate and no judicial process such as warrant of arrest was also issued by the Court of Metropolitan Magistrate and as such, the ld. Magistrate could not entertain the application for bail. It was also contended in the said written objections that the cases of Salahuddin v. State of Maharashtra, AIR 1996 SC 1042 : (1996 Cri LJ 1368) and K.L. Sharma v. State, 1997 Cal Cri LR (SC) 88 which were relied on by the opposite parties were not applicable to the fact situation prevailing at the point of time when the opposite parties approached the Court of Chief Metropolitan Magistrate for regular bail. The regular bail applications came up for hearing on 23rd Nov. 1998 on which day the petitioner filed another additional written objection. The ld. CMM by his order dated 23-11-1998 rejected the bail prayer but at the same time in view of the decision in K.L. Verma's case (1997 Cal Cri LR 88) (supra), was pleased to grant time to the opposite parties to move the higher Court if so advised, for bail directing the opposite parties to be present in Court in 1-12-1998. On 24th Nov. 1998 the opposite parties jointly filed an application under sub-section (1) of Section 439 before the learned Chief Judge, City Sessions Court, Calcutta. The said application was registered as Criminal Misc. Case No. 527 of 1998 and the petitioner on 26-11-1998 filed a written objection questioning the maintainability of that application on the ground that they were not in custody at the time of making the above application. The petitioner also raised objections to the grant of bail on the ground that the materials collected prima facie established commission of serious economic offences under the FERA by the opposite parties and that the grant of bail at that stage would reduce the investigation into a mere ritual but the ld. Chief Judge granted bail to the opposite parties by his order dated 26-11-1998. And hence the present applicationfor cancellation of that bail.

(2.) Mr. Thakur, the ld. Counsel appearing for the petitioner, assailed the legality of the orders passed by the ld. Chief Judge in, first, admitting the opposite parties to the anticipatory bail and, thereafter, to bail by his orders dated 9-11-1998 and 26-11-1998 respectively. It has been urged on behalf of the petitioner that the ld. Judge acted illegally in not taking into consideration all the factors relevant for granting anticipatory bail as well as bail. The impugned orders of the ld. Chief Judge amounted virtually to an interference with the investigation at its nascent stage into the economic offences involving huge amount of foreign exchange and unless the bail is cancelled, the petitioner shall suffer an irreparable loss and injury. Mr. Thakur seriously argued that the cases of Salahuddin and K.L. Verma (1997 Cal Cri LR 88) (supra) do not at all apply to the fact situation prevailing in the instant case and as such there was no legal scope for the ld. Chief Metropolitan Magistrate to entertain the bail applications of the opposite parties under Section 437, Cr.P.C. and also to grant them time to move the higher Court for bail under Section 439, Cr.P.C.In course of hearing, Mr. Thakur referred to a number of decisions and chronologically, they may be referred to as AIR 1978 SC 179 : ( 1978 Cri LJ 129) Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 961 : (1978 Cri LJ 952). The State through the Delhi Administration v. Sanjay Gandhi, AIR 1980 SC 1632 : (1980 Cri LJ 1125), Gurbaksh Singh Sibbia v. State of Punjab, AIR 1992 SC 1618 : (1992 Cri LJ 330); Mool Chand v. The State through the Director, C.B.I., AIR 1994 SC 1775 : (1994 Cri LJ 2269). The Directorate of Enforcement v. Deepak Mahajan, Unreported decision dated 30-8-1994 of this Court in C.O.No. 28(W) of 1994, (1996) 2 SCC 37 : (1996 Cri LJ 1354), State of H.P. v. Pirthi Chand, AIR 1996 SC 1042 : (1996 Cri LJ 13(8) (Salahuddin's case), AIR 1996 SC 1100 : (1996 Cri LJ 1623), Director of Enforcement v. M/s. MCTM Corpn. Pvt. Ltd. Unreported decision dated 8-10-1996 of a Division Bench of this Court in Criminal Misc. Case No. 690 of 1996 with Cri. Misc. Case No. 612 of 1996, 1997 (1) CHN (SC) 54 (K.L. Verma's case), 1997 (1) Cal LT HC 302; The State of West Bengal v. Nebulal Shaw, 1997 C Cr LR (SC) 159 : (1997 Cri LJ 4634; Directorate of Enforcement v. P.V. Prabhakar Rao, (1997) 7 SCC 187 : 1997 Cri LJ 4414); State v. Anil Sharma, AIR 1998 SC 696 : (1998 Cri LJ 841) Dukhishyam Benupani v. Arun Kumar Bajoria, 1998 C Cri LR (Cal) 212 ; Manish Bhowmik v. The State of W.B., 1998 C Cr LR (SC) 129 : (1998 Cri LJ 86 1) ; Directorate of Enforcement v. Ashok Kr. Jain and 1998 C Cr. LR (SC) 224 : (1998 Cri LJ 2527; State of W.B. v. Pranab Ranjan Roy.

(3.) The State supported the petition for cancellation of bail and virtually adopted the arguments advanced on behalf of the petitioner.